I have carefully considered the evidence adduced in the course of this hearing. The Complainant commenced her employment on the 18th of August 2014 and she was engaged as a decision maker in complex medical cases with which the Respondent Insurance company was routinely involved.

On the 30th of November 2018 the Complainant received a letter wherein she was notifed that the Employer (arising out of an in-house review) intended to commence an investigation into certain aspects of the Complainant’s conduct and in particular relating to her implementation of the Respondent’s Decision Maker policy and on-call policy. The Complainant was advised that the proposed investigation was to be carried out by a Ms. CG. The said letter set out a comprehensive programme for how the Investigation would be conducted and had attached to it, all the relevant documentation including codes, policies and certain items of potential evidence. It is noted that the Disciplinary Procedures Handbook allows the company to decide to appoint an internal or an external Investigator. The criteria for the selection of an investigator will depend on the complexity and seriousness of the issues.

The first investigative meeting was scheduled for a few days later on the 4th of December, but I understand the Complainant went out on sick leave on the 3rd of December 2018 and before any such meeting could take place.

Nothing further happened and presumably this was by reason of the fact that the Complainant was out on an extended sick leave. Some seven months later, on the 17th July of 2019 the Complainant lodged a Grievance against her Employer wherein, she set out in some detail the fact that she believed she had been the victim of bullying and victimisation by certain named members of the Management team. Of note is the fact that the Complainant stated that the work environment amounted to unsafe conditions and that this had been having an effect on her health.  The Complainant therefore identifies this action as the making of a complaint under the Safety Health and Welfare Act 2005. This is the protected Act and is accepted as such.

The Complainant continued to be out on sick leave. Some three months later, in October 2019  the Respondent came back to the Complainant stating that it had determined that an external investigator would now investigate these allegations and a named Barrister was identified for that purpose.

The Complainant was greatly surprised at this decision as she had at no time objected to Ms. CG having been appointed as the in-house Investigator. The reason for the change from internal to external Investigator was not known or made clear to the Complainant. Also,  the Complainant felt that the subject matter under investigation changed from a general

“whether you have been incorrectly logging or claiming on-call hours…… contrary to the Decision Maker policy/on-call policy”

To a more specific

“to understand the data and determine whether there is any evidence of inaccuracies in your Decision Maker Calls submissions for payment and to understand the circumstances which influenced the significant increase in claims made by you”

There is now no reference to the Decision Maker policy/on-call policy.

The Complainant has stated in her submission that whilst she may take issue with some facts surrounding the initiation of the proposed investigation, she does not resile from the principle that the Employer is always entitled to Investigate issues arising.

However, the Complainant believes that the unilateral decision to replace the proposed Investigator in conjunction with changing the purpose of the Investigation amounted to a penalisation for bringing the Grievance in July of 2019.  The Complainant says she was blindsided by this decision into which she had no input. Her perception was that the seriousness of the proposed investigation had now been escalated by the imposition of a Barrister to Investigate. The move, she said, upped the ante as it felt like she was being investigated to a criminal standard. The Complainant argues that the bringing of the Grievance amounted to a protected Act and the change in nominated Investigator amounted to a penalisation and it had a detriment to her.

The Respondent argued that the Investigation as initially proposed never got off the ground as the Complainant almost immediately went out sick. There could therefore be no obvious prejudice. The Respondent conceded that the triggering of the Grievance procedure in April 2019 by the Complainant did make the Respondent company consider whether or not it was viable to have an in-house Investigator investigate the issues raised in November 2018. The Respondent believed that the perception of Bias could become an issue if the investigation proceeded with an Investigator who was also a member of the Respondent’s staff when the Complainant had now also made very serious allegations against two senior members of staff. It could potentially put an in-house Investigator into a difficult position.

I accept the rationale behind the Respondent’s decision to change the Investigator from internal to external.  The perception of Bias was clear once the Complainant had pursued a Grievance (as was well within her rights) which identified two senior members of staff as bullies (allegedly). The Disciplinary process needed to stand alone and be separate and apart from the Grievance process. The easiest way to do this was to appoint an independent and competent Investigator to deal with one separate to the other. It is regrettable that this explanation provided to me by submission - both oral and written was not provided to the Complainant in the letter of 22nd of October 2019 nor was it made clear in the letter of the 9th of November which simply asserts the need to have “objectivity, detachment and fairmess in the fact finding of the investigation”. I do understand that the Complainant continued to be concerned at the change that had been made.

I am inclined to accept that the nature and extent of the Investigation to be conducted had not changed by reason of the change in the language used (and identified above) from the November 2018 letter to the October 2019 letter.  The Investigation was always concerned with the Complainant and her Decision Maker call submissions for pay. Again, it is regrettable that key written language (indeed the language that sets the parameter of an investigation) would be changed so carelessly. But I am satisfied that there is no ambiguity, and the Complainant could be in no doubt as to the scope of what was being investigated.

The Respondent argues, in any event, that the mere appointment of a person (internal or external) is not of itself an act which could be of detriment to the Complainant.  It is a neutral act. The appointment of a neutral Investigator cannot, on the face of it, cause harm or damage to the Complainant. The Respondent says that the appointment of an external Investigator  is not readily identifiable as an act of penalisation, examples of which are set out in Section 27 (suspension, demotion disciplinary action etc.). At best perhaps the Complainant could possibly claim that this was an act of intimidation but the Complainant, says the Respondent, would have to establish that to be an objectively correct assertion. The Respondent states that, all things being equal, the appointment of an independent outside Investigator has to be seen to be in line with best practise. The Complainant has brought a pre-emptive complaint (based on her subjective view),  against an Investigator who has not yet commenced an Investigation – says the Respondent.

I heard evidence directly from the Complainant who I accept did get a fright when she received a letter which (amongst other things) unilaterally nominated a new Investigator. Not understanding the context of how or why that decision was reached was frightening for the complainant.  She says she was scared to go in front of a Barrister (as Investigator) and again this is understandable in the context of attending meetings on her own where colleagues did not want to get involved.

I am critical of how the Respondent handled this matter. If their great  interest in avoiding the perception of Bias had been only matched by their obligation and duty to be fair to the Employee, then the feeling that she had that she was being targeted could have been avoided. However, I recognise that this was a subjective view held by the Complainant and the view was mis-conceived in light of the step actually taken. I fully accept the desirability of having an external Investigator conduct an Investigation. This was not an act capable of being as being of detriment to the Complainant.

In reaching this conclusion I would have some regard for the principles enunciated by the Labour Court in An Garda Siochana  -v- Hazel Delahunt HSD 1311 where the Labour Court had regard to a number of UK decisions on what type of action is required to constitute detriment or penalisation and noted that “a detriment exists if a reasonable worker  would or might take the view  that the treatment was in all the circumstances to his detriment “ (per Khan  -v- Chief Constable of West Yorkshire Police 2001 UKHL 48) but also held that any act on which penalisation is based “must amount to a detriment in the claimant’s terms and conditions of employment and not something that merely has the potential to lead to such a result is not enough”. The Labour Court also accepted  that  “an unjustified sense of grievance cannot amount to a detriment within the Statutory meaning”(Shamoon -v- Chief Constable RUC 2003 2AER26).

In the circumstances, I cannot find that the Complainant was penalised for having brought her Grievance which gave rise to a decision to nominate an external Investigator which, of itself, is not to her detriment.